Wobblers



In California this term is used to identify crimes that are punishable either as a felony or as a misdemeanor. There are over a hundred cases that can be classified as either a felony or a misdemeanor. This distinction can be found in the Penal Code. These types of cases are referred to as “wobblers" due to the sentencing structure. In other words, wobbler crimes are those that could bring a sentence of state prison, county jail, or fines.

Wobblers are lesser felony offenses that stipulate fines or jail time as alternative punishments. In California, wobbler offenses include misdemeanors that are elevated to felony status because of the defendant’s prior record. For example, petty theft is normally a misdemeanor, except when it is committed by an offender who has a prior theft conviction. Those types of cases involving minor instances of drug possession or driving under the influence are also examples of wobbler offenses.

However, for some drug crimes, such as possession of marijuana or hashish, which is considered an optional felony wobbler, can be sentenced alternatively. Under Proposition 36, effective July 1, 2001, first- and second- time possession-only offenders may demand a treatment program instead of jail. Then after 18 months the conviction will “fall off" of their criminal record.

When a case is a wobbler, the district attorney has the discretion to file it at either a felony or a misdemeanor. Then, following conviction, the sentencing judge has similar discretion to sentence the defendant to either a misdemeanor or felony sentence.

The Effect of a Wobbler on the Three-Strikes Law

California voters approved a ballot initiative known as “Three Strikes and You're Out" initiative. Basically what it means is that people who are convicted of three felonies may end up facing life in prison. This has a dramatic impact on wobbler crimes. Although an offense may otherwise be considered a minor offense, wobbler offenses are eligible to be counted as third strikes if the offender’s prior record contains two or more serious felony priors.

Trial courts have broad discretion to reduce a wobbler charged as a felony to a misdemeanor before preliminary examination or at sentencing and may thereby avoid imposition of a Three Strikes sentence. In exercising that discretion, the court will examine the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior, as well as other general objectives of sentencing.

Some crimes that would otherwise be misdemeanors become "wobblers" because of the defendant's prior criminal record. For example, under California law, petty theft is a wobbler, being that it can be prosecuted as either a misdemeanor or a felony. But where petty theft would normally be charged as a misdemeanor, it becomes a felony-misdemeanor where the defendant has previously served a term of imprisonment for specified theft-related crimes. Once escalated to a felony, the crime becomes the third strike. Others, such as grand theft, are felony-misdemeanors regardless of the defendant's prior record. Both types of wobblers qualify as triggering offenses under the Three Strikes Law when they are felonies.

The Three-Strikes Law has brought extremely absurd results and has put a lot of people behind bars who should not be there. For example, one California Three Strikes case involved an offender who stole a package of meat to feed his family . The low value of the meat, $5.62, would have normally classified this offense as a misdemeanor petty theft. However, because this individual had two prior strike offenses, the petty theft charge was elevated to a felony, which then counted as a qualifying third strike, putting him behind bars for 25 years to life.

Wobblette

Wobblettes are crimes which are punishable as either misdemeanors or infractions. An infraction is a violation of, or failure to comply with certain provisions of the Vehicle Code, local ordinance or other law or statute. Punishment for an infraction is a fine only. An infraction is not punishable by imprisonment. The maximum sentence on an infraction is a $250 fine, plus assessment and fees.

The California Penal Code states that all provisions of law relating to misdemeanors shall apply to infractions, except for jury trials and appointment of defense counsel, which are not available for infraction defendants. Further, as is customary for all crimes, the Penal Code provides that a defendant in a criminal action is presumed to be innocent until the contrary is proved beyond a reasonable doubt.

The Penal Code specifies that infraction defendants have no right to a jury trial, nor any right to have defense counsel appointed at public expense:

"An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury. A person charged with an infraction shall not be entitled to have the public defender or other counsel appointed at public expense to represent him or her unless he or she is arrested and not released on his or her written promise to appear, his or her own recognizance, or a deposit of bail."

Further, the Penal Code declares that all other provisions of law that apply to misdemeanors shall also apply to infractions:

"Except as otherwise provided by law, all provisions of law relating to misdemeanors shall apply to infractions including, but not limited to, powers of peace officers, jurisdiction of courts, periods for commencing action and for bringing a case to trial and burden of proof."

Thus, while the Penal Code eliminates jury trials and appointment of defense counsel for infraction defendants, such defendants do retain all other rights that one would associate with a misdemeanor defendant.